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[2022] ZALMPPHC 14
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S v Modimolla (02/2022 A290/2021) [2022] ZALMPPHC 14 (18 February 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
Rev:02/2022
Modimolle
Magistrate’s Court:A290/2021
REPORTABLE:
YES
OF
INTEREST TO THE JUDGES: NO
REVISED
DATE:
18 FEBRUARY 2022
THE
STATE
V
MODISE
JAN
MODIMOLLA
Accused
REVIEW
JUDGMENT
MULLER
J:
[1]
The accused was charged in the magistrate's
court Modimolle for losing his firearm and was sentenced to R6000.00
or 12 months imprisonment
half of which is suspended for 3 years on
condition that the accused is not convicted
of
contravening
section 120(8)(b) of Act 60 of 2000 committed during
the
period
of suspension.
[2]
The peculiarity of the conviction and the
sentence is that the accused pleaded guilty to an offence which was
allegedly committed
on 2 May 2021 and which is surprisingly described
in the preamble of the charge sheet as:
"That
the accused is guilty of the
crime of contravening the
provisions of Section 39(1)(k)
of The Arms and Ammunition Act 75 of 1969.
[The Arms and Ammunition Act 75 of 1969 was repealed
by s 153 of the FirearmsControl Act 60 of
2000. Act 60
of 2000 was assented to on 4 April 2001 and commenced on
1 July 2004, unless otherwise indicated).
[3]
A second charge sheet is included in the
record. In terms of that charge sheet the accused is charged with
contravening
section 120(8)(b)
of the
Firearms Control Act 60 of
2000
.
[4]
When the charge in terms whereof the
accused was charged with contravening the Arms and Ammunition Act 75
of 1969 was put to the
accused the prosecutor informed the court that
the accused is charged with one count of negligent loss of a firearm.
[5]
The
accused,
who was represented throughout the trial, pleaded guilty. A statement
in terms of section section 112(2) of the Criminal
Procedure Act 51
of 1977 (the CPA) was read into the record and handed in. The
accused,
inter alia,
admitted
in the statement that he contravened the provisions of section
39(1)(k) of Act 75 of 1969.
[6]
The magistrate was not satisfied with the
contents of the statement and requested that the particulars of the
firearm and the fact
that the accused was issued with a license to
possess same be included. After the request was complied with, the
magistrate convicted
the accused and pronounced in his judgment:
"So
you are guilty of contravening the provisions of section 39(1)(k) of
the Arms and Ammunition Act 75 of 969 as repealed
by
section 153
of
the
Firearms Control Act 60 of 2000
which was assented to on 4
April 2001."
[7]
The magistrate realised before sentence was
passed that the accused was charged under an Act that has been
repealed. With the concurrence
of the legal representative
of
the
accused, the
charge sheet was amended in terms
of
section
86 of the
CPA, to
the
extent
that the original charge was replaced with a
charge that the accused
contravened section
120(8)(b) of
the
Firearms Control
Act
60
of
2000.
(That accounts for the second charge sheet
included in the record). The magistrate then convicted the
accused under the
Firearms Control Act
and
sentenced him.
[8]
The
magistrate
submitted the
case
for
special
review.
The
Arms
and
Ammunition Act 75 of 1969 was repealed in
its entirety when the
Firearms Control Act 60 of 2000
came into
operations on 1 July 2004 in terms of schedule 3 of the
Firearms
Control Act 60 of 2000
, subject to schedule 1 of the latter Act,
which contains transitional provisions.
[9]
The allegation in the original charge sheet
is correct that the Arms and Ammunition Act of 1969 has been
repealed. The accused was,
therefore, charged that he committed an
offence in
terms
of a statutory provision which no
longer
constituted a criminal offence.
[10]
I will accept for present purposes that
section 39(1
)(k)
of the Arms and Ammunition Act 75 of 1965 and
section 120(8)(b)
of
the
Firearms Control Act 60 of 2000
are similarly worded.
[11]
However, since the original charge was
formulated under an repealed Act an amendment in terms of section
86(1) would tantamount
to a substitution of the charge with a charge
under a different Act even if the statutory provisions
are similarly
worde
d
.
The purpose of section 86(1) is to cater for amendment
s
,
not substitutions.
[12]
It was held in S
v
Grey
1985(2) SA 536 (C) at 539-8 that
an amendment of a charge from attempted housebreaking with intent to
steal to housebreaking with
intent to steal is permissible in terms
of section 86(1) of the CPA on the basis that there was substantial
identity between the
old and the new charge and that there was no
prejudice to the accused.
[13]
The
decision
was
overruled in
S
v
Barketts Transport (Edms) Bpk and
Another
1988 (1) SA 157(A)
at
161H-1628:
"Na
my mening is 'n substitusie van aanklagte nie 'n 'wysiging' binne die
betekenis van die woord in art 86(1) nie. Hierdie
uitleg word
bevestig deur die samehang waarin die woord 'wysig' in die subartikel
gebruik word, waaruit blyk dat 'n subsitusie
van misdrywe nie
inbegrepe is by enige van die soort wysigings nie waarvoor uitdruklik
voorsiening gemaak woord nie. Die bepaalde
opsigte waarin 'n aanklag
ingevolge die subartikel gewysig kan word, hou almal verband met die
misdryf gemeld in die aanklag, en
is die volgende; (a) indien 'n
noodsaaklike bewering ontbreek, selfs waar die aanklag nie n misdryf
openbaar nie;
(b)
waar 'n bewering in die aanklag verskil van die
getuienis wat as bewys van so 'n bewering aangevoer word; (c) waar
woorde of besonderhede
wat in die aanklag moes gewees het daaruit
weggelaat is; (d) waar woorde of besonderhede wat uit die aanklag
weggelaat moes gewees
het, daarby ingevoeg is; (e) waar daar 'n ander
tout in die aanklag is.
'n Substitusie van een
misdryf vir n ander is klaarblyklik nog 'n invoeging van 'n
noodsaaklike bewering, nog 'n aanpassing van
'n bewering in die
aanklag by die getuienis, nog die invoeging van die ontbrekende
woorde of besonderhede, nog die skrapping van
woorde wat nie in die
aanklag moes verskyn het nie."
[14]
The court continued at
1638-C:
"Dit
is duidelik dat daar in die Crause-saak geen sprake was van 'n
subsitusie van 'n nuwe misdryf nie en hierdie uitspraak
bied geen
steun vir die houding dat 'n substitusie geoorloof is solank dit net
nie 'n 'geheel nuwe' misdaad' skep nie
(S
v Nesane
1980 (2) SA 105
M op 105 C-D
of solank daar 'substantial identity' is tussen die ou en die nuwe
misdrywe
(S v Grey
1983
(2) SA 536
(K) op 539A-B) of solank dit 'wesenlik gelyksoortig' is
(Hiemstra
Suid Afrikaanse
Strafprosesreg
4de uitg op 213). Na my
mening is daar geen ruimte in die bewoording van art 86(1) vir
voormelde kwalifikasie nie en die
Nesane-
en Grey-sake kan op hierdie aspek nie
goedgekeur word nie.”
[15] The court held that
the question of prejudice to the accused only comes up if the
amendment is indeed an amendment in terms
of section 86(1).
Substitution of one offence for another offence, even if the offences
are substantially similar, as in the present
case, is not permissible
in terms of section 86(1).
[16] The magistrate
relied on S
v Nedzamba
2013 (1) SACR 335
(SCA) par 20 as
authority that the charge sheet may be amended where it was stated:
"It
is
generally accepted
that the
charge-sheets
or
indictments
may be amended on appeal or review. Once again the test is whether
the accused could not possibly be prejudiced thereby.
When
application is made to amend a charge on appeal the court must be
satisfied that the
defence would have
remained the same if the charge had originally contained the
necessary averments".
[17] That case dealt with
an amendment on appeal of a charge of rape where no reference was
made in the indictment to
section 3
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 Of 2007
. The court
held that the omission to refer to
section 3
is not fatal because the
crime of rape was not abolished but that the common law relating to
the crime of rape was repealed. The
crime of rape remained with a
different content provided by the provisions of
section 3.
[18] The learned Judge of
Appeal accepted that an amendment was sought and that the prejudice
that the accused may have suffered
if granted, was a consideration to
be taken into account by the court. Prejudice became a relevant
consideration only after the
court was satisfied that an amendment
and not substitution of the charge was sought in terms of
section
86(1).
[19]
It will
be
recalled that the
magistrate first convicted the
accused for contravening the Arms and
Ammunition Act and then amended the charge sheet. Section 86(1)
permits a court to amend the
charge sheet before judgment. In
S
v Ndlovu
2017 (2) SACR 305
(CC) par 56
it was emphasized that:
"Courts are
expressly empowered in terms of
s 86
of the
Criminal Procedure Act to
order that a charge be amended. Upon realizing that the charge did
not accurately reflect the evidence led, it was open to the
court
at
any time before judgment
to invite the state to apply to amend
the charge and to invite Mr Ndlovu to make submissions on whether
prejudice would be occasioned
by the amendment".
[20]
The accused was charged with an offence
committed under a repealed Act. He pleaded guilty to that offence and
was convicted of having
committed that offence on the strength of his
statement. To substitute the non-existing offence for a similarly
worded offence
created under another Act, after conviction and then
to deliver a judgment in terms whereof the accused is convicted of
the latter
offence on the basis of the amended charge sheet, is in
conflict with section 86(1). The magistrate was in any event
functus
officio.
It amounted to a serious
irregularity which rendered that trial unfair in terms of section
35(3)(/) of the Constitution which states
that:
"Every accused
person has a right to fair trial which includes the right-
…
.
(I)
not to be convicted for an act or omission
that was not an offence under either national or international law at
the time it was
committed or omitted."
[21]
The Deputy Director of Public Prosecutions
was requested to provide an opinion. I am indebted to him and his
staff
member for
their valuable contribution. They are of the
view that the state was bound by the charge
sheet upon conviction. They agree that the convictions and
sentence cannot stand.
[22]
The matter, in my view, should be referred
back to the magistrate Modimolle for proceedings to be instituted
before a different
magistrate in terms of section 324 read with
section 313 of the
CPA.
ORDER
The
convictions and the sentence imposed are set aside.
The
matter is referred back to magistrate Modimolle for proceedings to be
instituted before a different magistrate.
G.
C MULLER
JUDGE
OF THE HIGH COURT LIMPOPO
DIVISION:
POLOKWANE
I
agree
E.M
MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE